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Law À La Mode LAW ÀLA MODE Issue 6 – Summer 2012 US guidelines for working with models When is a free handbag considered a bribe? Use of nanotechnology for cosmetics Collaborating with Central St Martins Practical tips for recovering design right infringement damages INTA Event: Around the 2012 retail world in sixty minutes Litigators get (anti) social An Australian take on e-tail launches The European Commission’s ambitious plan for the European digital marketplace Fashion, Retail and Design Group Contents AMERICA’S NEXT TOP MODEL 04 Guidelines for brand owners BRIBERY AND THE FASHION INDUSTRY 05 When is a free handbag considered a bribe? NO TRADEMARK SEIZURE FOR GIANFRANCO FERRÉ IN ITALY 06 The court of Isernia gives its decision NANOPARTICLES NOT TOO SMALL TO ESCAPE US REGULATION 07 FDA issues draft guidance on use of nanotechnology in cosmetic products RELAUNCHING HERITAGE FASHION BRANDS 08 What should your IP audit involve? AT THE CROSSROADS OF TEXTILE MANUFACTURING: TURKEY 09 Examining the risk and opportunities TAKING DAMAGES INTO ACCOUNT 10 – 11 Top tips for English law litigants E-COMMERCE UPDATE 12 What’s on the agenda? ONLINE RETAIL IS BOOMING 13 Three key tips to keep in mind when opening your online store LITIGATORS GET (ANTI)-SOCIAL 14 – 15 Social media as part of a litigation strategy A WORD FROM THE INDUSTRY’S MOUTH 16 – 17 We chat to blogger Victoria Chang INTA EVENT ANALYSIS 18 Reflecting on the top branding issues for retailers in 2012 BUSINESS ROUND-UP 19 The news and the views CALENDAR 20 Our round-up of what’s on where you are 02 | Law à la Mode Knitwear designed by Cynthia Fong, Central Saint Martins, 2012 Graduate Editorial All eyes are on London this summer, with celebrations Finally, following on from our special edition of Law à la Mode to mark the Queen’s Diamond Jubilee, not to mention to mark the 134th INTA Annual Meeting in Washington, the much-anticipated Olympic Games. With this in mind, DC, we give you an insight into our exciting INTA event: the London editorial team are delighted to bring you this “Around the retail world in sixty minutes: Reflecting on the sixth edition of Law à la Mode. top branding issues for retailers in 2012”. Putting our British fashion foot forward, at page 20 we We do hope that you enjoy this summer issue. If you have any explore DLA Piper’s recent collaboration with the School of comments please get in touch with the Fashion, Retail and Fashion and Textiles at Central Saint Martins College of Arts Design Group via our email: [email protected]. and Design. 2012 has also seen the bedding down of the UK’s Ruth Hoy and Rebecca Kay new and pervasive Bribery Act, so at page 5 we look at the implications for the fashion industry, following our popular March seminar “When is a free handbag considered a bribe?” Continuing the Anglo theme, at pages 10 – 11 we consider London Editorial Board ways of recovering damages under English law for design right Ruth Hoy (Partner and Co-Chair of the Fashion, Retail infringements. and Design Group) Moving further afield, we take a look at the European Rebecca Kay Commission’s ambitious plan for the European digital Kokyee Ng marketplace, and our Istanbul colleagues introduce us to the opportunities (and risks) of using Turkey as a manufacturing Graham Williams base. Our US team explore new guidelines for working with models, while our team in Sydney has some top tips to keep in mind when opening an online store. This issue includes all our regular features, including our social media article, “A Word from the Industry’s Mouth” (where we meet Victoria Chang, Belgian lawyer turned fashion blogger), Business Round-Up and our calendar page of this season’s major fashion events. www.dlapiper.com | 03 America’s Next Top Model… By Guidelines Alexander S. Birkhold (New York) The recent formation of the Model Alliance, an organization For more information, visit: http://labor.ny.gov/ seeking to enforce and expand existing legal protections workerprotection/laborstandards/workprot/specoccs. for models in the United States, has prompted increased US shtm#childmodel. scrutiny of employment and image rights issues in the fashion In addition to following the legislative and recommended industry. regulations, brand owners working with models (whether Although labor laws vary among US states, the Department in the US or elsewhere) should also prepare model releases of Labor, through the Fair Labor Standards Act, has set before work begins in order to avoid subsequent conflict with minimum wage requirements, established 14 as the minimum their client. Any person who knowingly uses another’s name, employment age and limited the hours of child employees photograph or likeness without the person’s consent may be under 16. New York has already augmented these federal liable for damages sustained by the injured person. A model requirements, further regulating the working hours of minor release, however, provides the authority to use an individual’s models. name, voice, visual likeness, photographs or other stipulated terms. When drafting a model release, at least three factors On top of New York’s laws, organizations such as the Model should be considered: Alliance and the Council of Fashion Designers of America have articulated aspirational guidelines for working with ■ Purpose. Will the image be used in advertising, an models, including: editorial or for art? ■ Do not hire models under the age of 16 to walk in ■ Duration of use runway shows ■ Nature of use. What is the medium in which the images ■ Do not allow models under the age of 18 to work past will be published? Not all models will agree to allow their midnight on fittings or shoots image used in certain media, so it is especially important to negotiate this term before use ■ Models may refuse non-paying jobs and jobs that pay only in “trade” To avoid disagreement later, make sure to discuss these factors up front, before your model walks on set or down ■ No model under the age of 17 shall be asked to pose nude the runway. or semi-nude ■ All jobs and castings involving full or partial nudity must be subject to informed, prior consent 04 | Law à la Mode Bribery and the Fashion Industry: When is a free handbag considered a bribe? By Jo Rickards and Laura Ford (London) Bribery has always been illegal in the UK, but the Bribery Facilitation “grease” payments Act 2010 (the Act) which came into force in the UK on Another issue of concern common to all industries involved 1 July 2011, has brought this crime into sharp relief, not least in the import and export of goods, including retailers, is because it is now far easier to prosecute than it was under the facilitation payments. Facilitation payments are low-level old law. The Act affects businesses across every industry and payments to foreign public officials to speed up routine not just those in banking and finance. It therefore comes as government actions. They may be legal in certain countries no surprise that fashion businesses will need to review their under very strict circumstances, but are and have always internal practices to ensure that they do not fall foul of the been illegal in the UK. The enactment of the Act made the Act. DLA Piper and Brunswick hosted an event in March issue of facilitation payments all the more pressing however, this year for our fashion and retail clients to address how the as it created a new strict liability offence under section 7 of Act affects them and to consider the question “when is a free the Act, which means that a business can be liable simply by handbag considered a bribe?” failing to prevent bribery (by its own employee or even its agents). For example, if a fashion house exports its goods to Free samples China, and its customs broker makes a facilitation payment One practical issue of concern for the retail industry is that to a Chinese port official to ensure the smooth transition of of free samples. The majority of fashion houses send samples the goods through customs so they arrive in time for an award of the following season’s must-have key pieces to journalists ceremony, the fashion house could be charged with failing to to review and often allow the journalists to keep the samples. prevent bribery. Answering the question of whether this could be considered a bribe depends on a number of factors; for example, by Managing your risk providing the sample, is the fashion house intending that There are a few simple measures that companies in the journalists will write well of the item, irrespective of whether fashion industry can take to manage their risk in a bribery they liked it or not? Or is the fashion house just hoping that and corruption context. They should conduct a risk the item will receive a good review, with no intention of assessment to see where their risks lie and design and improperly influencing the content of the journalist’s article? implement proportionate procedures to counter such risks. Even if the fashion house does not have such an improper Management should send a strong message from the top intention, would a prosecutor think and could they establish that bribery in any form is not tolerated by the business, that they did? Could the cumulative value of samples given and employees should be trained on its anti-bribery policies over time give the appearance of bribery? Is the sample of and procedures. If a company does these things, it will be in a such value that the gifting of it appears disproportionate? strong position to argue that it has adequate procedures in These are all questions that brand owners should ask place to prevent bribery and as such has a potential defence to themselves.
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